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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2000-285

THE STATE OF NEW HAMPSHIRE

v.

SCOTT CURRIER

Argued: November 14, 2001
Opinion Issued: August 16, 2002

Philip T. McLaughlin, attorney general (Malinda R. Lawrence,
senior assistant attorney general, on the brief and orally), for the State.

Kenna, Johnston & Sharkey, PA, of Manchester (Kevin E. Sharkey
on the brief and orally), for the defendant.

Nadeau, J. The defendant, Scott Currier, was convicted in Superior Court (Fauver,
J.) of nine counts of aggravated felonious sexual assault, see RSA
632-A:2 (1996) (amended 1997, 1998, 1999), and four counts of felonious sexual
assault, see RSA 632-A:3 (1996) (amended 1997). On appeal, he argues
that: (1) the four comprehensive convictions entered on indictment nos. 596,
597, 598 and 605, should be vacated with prejudice and the nine remaining
convictions vacated and remanded for a new trial as they collectively violated
the Double Jeopardy Clause of the New Hampshire Constitution, N.H. CONST. pt. I,
art. 16; (2) the trial court erred by deferring until the close of evidence the
defendantís motion to dismiss an indictment for attempted aggravated sexual
assault, see RSA 629:1 (1996) (amended 1999); RSA 632-A:2; and (3) the
trial court erred by prohibiting the defendant from questioning the victim as to
her familiarity with sexual matters, independent of her contact with the
defendant. We reverse and remand.

On the record before us, the jury could have found the following facts. In
1990, the defendant, then fourteen years old, began sexually molesting his
six-year-old cousin. The defendant repeatedly molested his cousin for the next
five years. In 1998, the victim reported the abuse, resulting in the defendantís
arrest. Of the twenty-one original indictments against the defendant, the State nolprossed six prior to trial for lack of evidence. At the close of all the
evidence, the trial court granted the defendantís earlier motion to dismiss
two more indictments. Nine of the remaining indictments charged the defendant
with engaging in specific sexual acts against the victim for a period of one to
two years. The four remaining indictments (nos. 596, 597, 598 and 605) charged
the same acts, but did so over a broader time frame.

At trial, the defendant objected to these indictments, arguing that the State
would have to either proceed on single-year or multiple-year indictments. The
State argued that the temporally broad indictments were alternative theories to
the temporally narrow indictments. The court concluded that the broader
indictments were appropriate as alternative theories and recognized that the
defendant couldnot be sentenced on the alternative theories if convicted
on the narrower indictments.

Following the Stateís opening statement, the defendant moved for dismissal
of an attempted aggravated felonious sexual assault indictment, arguing that the
evidence outlined in the Stateís opening statement varied fatally from the
evidence required to establish the elements of the crime charged in the
indictment. The court denied the motion. During the victimís testimony, the
defendant renewed the motion. The court deferred ruling, dismissing the
indictment at the close of all evidence.

Finally, the defendant attempted to introduce evidence that the victim had
been exposed to pornographic videos and sexual paraphernalia prior to reporting
the defendantís conduct, thereby providing a basis, independent of the
defendantís alleged conduct, for her familiarity with certain sexual activity.
The trial court conducted a Howard hearing, after which it ruled that the
defendant would be permitted to elicit testimony from the victim that she had
discovered sexually explicit videos in her fatherís home, but would not be
allowed to cross-examine her regarding the content of those videos or her
exposure to any sexual paraphernalia. SeeState v. Howard, 121 N.H.
53 (1981).

The jury returned guilty verdicts on the remaining thirteen indictments and
the defendant was sentenced to two concurrent terms of not more than fifteen
years and not less than seven and one-half years in the New Hampshire State
Prison on two of the temporally narrow aggravated felonious sexual assault
convictions. The defendant was sentenced to a term of not more than ten years
and not less than five years, sentence to be suspended, on indictment nos. 590,
591, 593, 594, 596, 597 and 598. In addition, the defendant was sentenced to a
term of not more than six years and not less than three years, sentence to be
suspended, on indictment nos. 602, 603, 604 and 605.

Part I, Article 16 of the New Hampshire Constitution protects an accused
against multiple prosecutions and multiple punishments for the same offense. SeeState v.Nickles, 144 N.H. 673, 676 (2000). Double jeopardy bars a
subsequent prosecution for the same offense. SeeState v. Constant,
135 N.H. 254, 255 (1992). The State may, however, simultaneously prosecute
multiple charges which constitute the same offense based on a single act or
transaction provided it seeks a single conviction and each charge alleges
a distinct, alternative method of committing the offense. SeeState v.
Allison, 126 N.H. 111, 113 (1985).

The State concedes that the trial court violated the double jeopardy
provisions of both the United States and New Hampshire Constitutions when it
sentenced the defendant on both the temporally broad and narrow indictments. The
State filed a motion with the trial court to vacate the sentences stemming from
those broad indictments. On February 8, 2002, the trial court granted the Stateís
motion and vacated the sentences entered upon indictment nos. 596, 597, 598 and
605.

Vacating the overlapping sentences, however, does not address the defendantís
challenge to the Stateís indictment scheme. The defendant argues that
prosecuting him under both temporally narrow and broad indictments constituted a
double jeopardy violation. We agree.

In State v. Allison, 126 N.H. 111, 113 (1985), we affirmed the Stateís
ability to charge a defendant simultaneously with alternative methods of
committing the same offense. This general rule "rests upon a practical
recognition that before trial the evidence may not be completely known, and when
introduced may support alternative interpretations and inferences." Id.
However, because the general rule rests upon the possibility of proving
different evidentiary facts, it does not justify the simultaneous prosecution of
two charges identical in fact as well as in law. Seeid. at 114.
The State contends that charging the defendant with temporally narrow
indictments, and in the alternative, temporally broad indictments, was necessary
because the parties and trial court agreed that the State would be required to
prove the specific time element in the temporally narrow indictments beyond a
reasonable doubt.

Because the State pursued indictments against the defendant that were
temporally narrow, it was concerned that at trial the victim would be unable to
remember exactly when certain abuses occurred. To compensate, the State also
pursued temporally broad indictments to act as a safety net in the event it
failed to prove the time element. The State asks us to find that charging in the
alternative is the natural and unavoidable result of pursuing temporally narrow
indictments.

Neither RSA 632-A:2 nor RSA 632-A:3 requires the State to prove the element
of time. Therefore, prosecution for the same act within both a narrow and broad
time frame is, in reality, prosecution of two charges identical in fact as well
as in law and, therefore, a double jeopardy violation. SeeAllison,
126 N.H. at 114. We recognize that the State faces a difficult challenge when
prosecuting a case affected by the passage of time. Nevertheless, the double
jeopardy provision of the State Constitution precludes answering that particular
challenge by charging the same act in alternative indictments. Rather, the State
must choose between an indictment that is temporally narrow or one that istemporally
broad, but not both. Accordingly, we reverse the defendant'sconvictions
entered upon the temporally broad indictments, nos. 596, 597, 598 and 605.

We next consider whether the Stateís overlapping indictment scheme was a
violation of due process. See U.S. CONST. amend. V, XIV; N.H. CONST. pt.
I, art. 15. We analyze the defendantís constitutional claims first under the
New Hampshire Constitution, referencing decisions of the United States Supreme
Court and other jurisdictions only for the purpose of aiding our State
constitutional analysis. SeeState v. Cannuli, 143 N.H. 149, 151
(1998). Because Part I, Article 15 of the New Hampshire Constitution is at least
as protective of the defendantís rights as the Due Process Clause of the
Fourteenth Amendment, cf. Knowles v. Warden, N.H. State Prison,
140 N.H. 387, 389 (1995), and as the Fifth Amendment, seeState v.
Settle, 132 N.H. 626, 630 (1990), we do not engage in a separate federal
analysis. SeeState v. Ball, 124 N.H. 226, 232 (1983).

It has long been the general rule in this jurisdiction that the State may
proceed to trial on more than one charge, when it seeks only one conviction
based on a single act or transaction. SeeAllison, 126 N.H. at
113. The general rule is subject to exception, however, when trial upon multiple
counts or indictments would prejudice either the defendantís ability to
prepare to meet the charges or the juryís ability to deal with them
intelligently and dispassionately. Seeid. at 114. Though the nine
temporally narrow indictments were proper themselves, the convictions under them
were impermissibly tainted by the inclusion of the temporally broad indictments,
making reasonable an inference by the jury that the defendant was charged with
more crimes than he actually was. We therefore hold that charging the defendant
under both temporally narrow and temporally broad indictments was confusing and
compromised the juryís ability to consider the matter intelligently and
dispassionately. Accordingly, we reverse the remaining convictions and remand.

The defendant next argues that despite several motions by the defendant to
dismiss indictment no. 599, the trial court erroneously deferred ruling upon the
motions until the close of evidence. We agree, and hold that the decision to
defer granting the motion to dismiss until the close of evidence impermissibly
cast the defendant in a negative light, increasing the likelihood of jury
prejudice. A review of the record indicates that the Stateís opening argument,
in pertinent part, varied fatally from the facts upon which the indictment was
based. Accordingly, the court's decision to wait until the conclusion of the
evidence to dismiss the indictment was an unsustainable exercise of discretion. SeeState v. Lambert, 147 N.H. 295, 296 (2001).

Finally, because the issue may arise during retrial, we address the defendantís
contention that the trial court engaged in an unsustainable exercise of judicial
discretion when it limited his ability to cross-examine the victim concerning
her exposure to pornographic videos and sexual paraphernalia. At trial, the
court conducted a Howard hearing to determine, given the victimís age,
if evidence of such exposure, independent of her contact with the defendant,
would tend to exculpate the defendant. SeeHoward, 121 N.H. at
59-61.

In State v. Howard, we held that the requirement of due process and
the right of confrontation limit the application of the rape shield law, RSA
632-A:6 (1996 & Supp. 2001), when evidence of the victimís prior sexual
activity with people other than the defendant has probative value in the context
of a particular case that outweighs its prejudicial effect on the victim. SeeHoward, 121 N.H. at 59-61; seealsoState v. Goulet,
129 N.H. 348, 351 (1987). In this case, the issue before the trial court
concerned the victimís inadvertent exposure to certain videos and
paraphernalia. A Howard hearing was not required as neither the rape
shield law nor the victimís prior sexual activity is at issue in the present
matter. Upon retrial, we leave it to the trial court to determine whether any
evidence of the victimís exposure to the challenged materials is admissible.